number 34 • Winter 2018

Authors

Mario Loyola

articles

The Obama administration has routinely abused its executive and administrative powers, but a new rule from the Environmental Protection Agency would set a new standard for overreach. The "Clean Power Plan" leverages a rarely-used section of the Clean Air Act to require each state to regulate its production, transmission, and consumption of electricity, and compels states to participate through unprecedented punitive threats. It constitutes perhaps the most virulent form of federal coercion the states have ever faced.

For decades, conservative defenders of the prerogatives of state governments have warned that modern theories of "cooperative federalism" are just veils for a vast expansion of federal power at the expense of the states. Today, progressive legal scholars increasingly voice the same view, if with approval rather than concern. This newfound honesty about the condition of American federalism should help conservatives — and the courts — revive the case for the genuine dual sovereignty envisioned by our Constitution.